Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

by leave—I move government amendments (12) and (13) on sheet QC300 together:

(12)  Clause 524, page 417 (line 23), omit “Note:”, substitute “Note 1:”.

(13)  Clause 524, page 417 (after line 25), at the end of subclause 524(2), add:

Note 2: An enterprise agreement or a contract of employment may also include terms that impose additional requirements that an employer must meet before standing down an employee (for example requirements relating to consultation or notice).

Item (12) is a minor technical amendment consequential on item (13). It allows a second legislative note to be included. Item (13) would insert another legislative note, following clause 524 of the bill. It explains that an enterprise agreement or contract of employment may make additional provisions for stand-down, including consultation or notice requirements.

Question agreed to.

by leave—I move government amendments (14) to (16) on sheet QC300 together:

(14)  Clause 734, page 543 (line 19), before “A”, insert “(1)”.

(15)  Clause 734, page 543 (line 22), omit “another”, substitute “an anti-discrimination”.

(16)  Clause 734, page 543 (after line 27), at the end of the clause, add:

        (2)    A person must not make an application or complaint under an anti-discrimination law in relation to conduct that does not involve the dismissal of the person if:

             (a)    a general protections court application has been made by, or on behalf of, the person in relation to the conduct; and

             (b)    the application has not:

                   (i)    been withdrawn by the person who made the application; or

                  (ii)    failed for want of jurisdiction.

These amendments deal with provisions preventing a person from double-dipping by bringing multiple actions under the general protections provisions and other laws. As introduced, clause 734 would prevent a person bringing an action under the general protections if they had already brought an action under another law in relation to the same conduct. Concerns were raised that this did not prevent a person from bringing a general protections claim first and then bringing an action under another Commonwealth, state or territory antidiscrimination law. Amendment (16) would therefore ensure that a person is only able to bring an action under either the general protections or a Commonwealth, state or territory antidiscrimination law but not both—a sensible amendment, if I may say so. This will not prevent a person from bringing applications under other relevant laws in appropriate circumstances—for instance, where the conduct may also breach a person’s obligation under workers compensation laws. Amendments (15) and (16) are consequential upon that.

Question agreed to.

I move government amendment (1) on sheet PV376:

(1)    Clause 596, page 470 (after line 6), at the end of subclause (2), add:

Note:   Circumstances in which FWA might grant permission for a person to be represented by a lawyer or paid agent include the following:

(a)        where a person is from a non-English speaking background or has difficulty reading or writing;

(b)        where a small business is a party to a matter and has no specialist human resources staff while the other party is represented by an officer or employee of an industrial association or another person with experience in workplace relations advocacy.

Forward with Fairness noted that Fair Work Australia will act informally and in most cases lawyers and other professional representation will not be necessary, requiring lawyers and contingency fee agents to seek permission to appear before the FWA and ensuring that, wherever it is more efficient to do so, cases can be dealt with without legal representation. Employees of organisations appearing before the FWA who are legally qualified are not excluded, as they are appearing in the capacity of employees of the organisation rather than as legal representatives. Consistent with the FWA having a broad discretion as to how matters before it are dealt with, the FWA may allow paid lawyers or agents to represent a person in a matter before it, subject to a number of criteria.

The FWA must balance a number of factors in deciding this question, including whether it would be unfair not to allow representation, the complexity of the matter and the fairness between the parties. If the FWA considers that a worker involved in proceedings is disadvantaged or vulnerable, it is clearly open to the FWA to grant permission for legal representation. The government notes that the Senate committee received evidence that workers may be disadvantaged if they are not properly represented.

The government is moving this amendment following discussions with Senator Xenophon where examples were provided of when it would be appropriate for the FWA to allow legal representation. Examples of where the FWA may consider granting permission for a person to be represented by a lawyer or a paid agent are: where a person is from a non-English-speaking background or has difficulty reading or writing and where a small business with limited specialist human resources experience is unable to adequately represent itself against a party that is represented by an officer or employee of an industrial association or another person with experience in workplace relations advocacy.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

Very briefly, can I indicate that I am pleased that the government is moving this amendment as a result of discussions that I had with the government. I believe it will make it fairer in those circumstances where a party could be disadvantaged. I think that there is still an emphasis on informality, but, where there is perhaps a disparity in terms of representation, particularly in the circumstances that have been set out, I believe the amendment will make it fairer and clearer for FWA to determine cases where leave needs to be sought for representation.

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

Can I briefly, on this occasion, add my support. I believe this is a very important measure, especially for small businesses who do not have in-house lawyers as employees of their organisation. If they were to come before Fair Work Australia, it would be fair to say that they might well be up against wonderful trade union advocates such as Senator Marshall and others. As a result, to allow the small business to have a trained advocate is, I think, a very important measure, and we welcome this move by the government.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

The Greens support this amendment as it provides some guidance to FWA in circumstances where they may be minded to grant leave for legal representation. I remind the Senate that in fact the Greens have an amendment dealing with a similar issue, in that we want to exempt community legal centre lawyers from the need to seek leave, but we will move that amendment at a later time.

Steve Fielding (Victoria, Family First Party) Share this | Link to this | Hansard source

I will just add that Family First obviously supports this amendment because it helps small businesses. As was quite clearly articulated, small businesses do not have the resources of larger businesses, and this is the reason why the government has acknowledged in the legislation that small businesses should be treated differently. This is a good move.

Question agreed to.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

I think that draws to a conclusion the amendments on sheet PV376. There are some others, but I think they are really consequential and sometimes get a little bit complex, so it may be advisable now to go back to the order on the running sheet. I thank the Senate for the ability to move through those agreed items—or, at least, not opposed items—so that we can remove those from the running sheet and therefore reduce our workload for today. My understanding is we would then—

Carol Brown (Tasmania, Australian Labor Party) Share this | Link to this | Hansard source

Minister, does that mean we will be going back to ‘various’ on sheet QW366 revised?

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

That is what I was just going to highlight. Unless the opposition have a different view and want to move on to something else, my understanding is that we would be going back to amendments on QW366 which are about right of entry.

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

I thank the minister for conceding to me. In relation to these issues, we believe it may be preferable to get it in an order so that our amendments potentially be dealt with first. Therefore, if we can just defer this matter for some time so that we can further clarify that, that may mean substantial time-saving.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

What we might do is get the relevant advisers to sort that out as quickly as they can. I will find another one.

Steve Fielding (Victoria, Family First Party) Share this | Link to this | Hansard source

If I could also make a comment on that, the government’s amendments on sheet QW366 appear to conflict with some of the Family First amendments on sheet 5733 revised 3. I am trying to work out whether we could go offline and have a discussion about what might be the best order, because some amendments could preclude other amendments being moved before them.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

I think that is the object of getting the advisers to deal with the way forward—so we can reduce the amount of time we spend on this. I am sorry, Senator Fielding; I did miss out Family First there, but it would include your amendments as well.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

And mine!

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

I could not forget you, Senator Siewert!

The Temporary Chairman:

Everyone will be included. Minister, where are we going to now?

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

by leave—I move government amendments (1) to (22) on sheet QU427:

(1)    Clause 12, page 10 (before line 25), before the definition of applicable award-derived long service leave terms, insert:

applicable agreement-derived long service leave terms: see subsection 113(5).

(2)    Clause 16, page 34 (line 15), omit “However”, substitute “Despite subsection (1)”.

(3)    Clause 16, page 34 (after line 28), at the end of the clause, add:

Meaning for pieceworkers for the purpose of section 206

        (3)    The regulations may prescribe, or provide for the determination of, the base rate of pay, for the purpose of section 206, of an employee who is a pieceworker. If the regulations do so, the employee’s base rate of pay, for the purpose of that section, is as prescribed by, or determined in accordance with, the regulations.

Note:   Section 206 deals with an employee’s base rate of pay under an enterprise agreement.

(4)    Clause 55, page 68 (line 8), omit “only if the”, substitute “only to the extent that the”.

(5)    Clause 55, page 68 (lines 30 to 36), omit subclause (5), substitute:

Enterprise agreements may include terms that have the same effect as provisions of the National Employment Standards

        (5)    An enterprise agreement may include terms that have the same (or substantially the same) effect as provisions of the National Employment Standards, whether or not ancillary or supplementary terms are included as referred to in subsection (4).

Effect of terms that give an employee the same entitlement as under the National Employment Standards

        (6)    To avoid doubt, if a modern award includes terms permitted by subsection (4), or an enterprise agreement includes terms permitted by subsection (4) or (5), then, to the extent that the terms give an employee an entitlement (the award or agreement entitlement) that is the same as an entitlement (the NES entitlement) of the employee under the National Employment Standards:

             (a)    those terms operate in parallel with the employee’s NES entitlement, but not so as to give the employee a double benefit; and

             (b)    the provisions of the National Employment Standards relating to the NES entitlement apply, as a minimum standard, to the award or agreement entitlement.

Note:   For example, if the award or agreement entitlement is to 6 weeks of paid annual leave per year, the provisions of the National Employment Standards relating to the accrual and taking of paid annual leave will apply, as a minimum standard, to 4 weeks of that leave.

Terms permitted by subsection (4) or (5) do not contravene subsection (1)

        (7)    To the extent that a term of a modern award or enterprise agreement is permitted by subsection (4) or (5), the term does not contravene subsection (1).

Note:   A term of a modern award has no effect to the extent that it contravenes this section (see section 56). An enterprise agreement that includes a term that contravenes this section must not be approved (see section 186) and a term of an enterprise agreement has no effect to the extent that it contravenes this section (see section 56).

(6)    Clause 61, page 72 (lines 5 and 6), omit subclause (1), substitute:

        (1)    This Part sets minimum standards that apply to the employment of employees which cannot be displaced, even if an enterprise agreement includes terms of the kind referred to in subsection 55(5).

Note:   Subsection 55(5) allows enterprise agreements to include terms that have the same (or substantially the same) effect as provisions of the National Employment Standards.

(7)    Clause 113, page 114 (line 3) to page 115 (line 19), omit the clause, substitute:

113 Entitlement to long service leave

Entitlement in accordance with applicable award-derived long service leave terms

        (1)    If there are applicable award-derived long service leave terms (see subsection (3)) in relation to an employee, the employee is entitled to long service leave in accordance with those terms.

Note:   This Act does not exclude State and Territory laws that deal with long service leave, except in relation to employees who are entitled to long service leave under this Division (see paragraph 27(2)(g)), and except as provided in subsection 113A(3).

        (2)    However, subsection (1) does not apply if:

             (a)    a workplace agreement, or an AWA, that came into operation before the commencement of this Part applies to the employee; or

             (b)    one of the following kinds of instrument that came into operation before the commencement of this Part applies to the employee and expressly deals with long service leave:

                   (i)    an enterprise agreement;

                  (ii)    a preserved State agreement;

                 (iii)    a workplace determination;

                 (iv)    a pre-reform certified agreement;

                  (v)    a pre-reform AWA;

                 (vi)    a section 170MX award;

                (vii)    an old IR agreement.

Note:   If there ceases to be any agreement or instrument of a kind referred to in paragraph (a) or (b) that applies to the employee, the employee will, at that time, become entitled under subsection (1) to long service leave in accordance with applicable award-derived long service leave terms.

        (3)    Applicable award-derived long service leave terms, in relation to an employee, are:

             (a)    terms of an award that (disregarding the effect of any instrument of a kind referred to in subsection (2)):

                   (i)    would have applied to the employee immediately before the commencement of this Part if the employee had, at that time, been in his or her current circumstances of employment; and

                  (ii)    would have entitled the employee to long service leave; and

             (b)    any terms of the award that are ancillary or incidental to the terms referred to in paragraph (a).

Entitlement in accordance with applicable agreement-derived long service leave terms

        (4)    If there are applicable agreement-derived long service leave terms (see subsection (5)) in relation to an employee, the employee is entitled to long service leave in accordance with those terms.

        (5)    There are applicable agreement-derived long service leave terms, in relation to an employee if:

             (a)    an order under subsection (6) is in operation in relation to terms of an instrument; and

             (b)    those terms of the instrument would have applied to the employee immediately before the commencement of this Part if the employee had, at that time, been in his or her current circumstances of employment; and

             (c)    there are no applicable award-derived long service leave terms in relation to the employee.

        (6)    If FWA is satisfied that:

             (a)    any of the following instruments that was in operation immediately before the commencement of this Part contained terms entitling employees to long service leave:

                   (i)    an enterprise agreement;

                  (ii)    a collective agreement;

                 (iii)    a pre-reform certified agreement;

                 (iv)    an old IR agreement; and

             (b)    those terms constituted a long service leave scheme that was applying in more than one State or Territory; and

             (c)    the scheme, considered on an overall basis, is no less beneficial to the employees than the long service leave entitlements that would otherwise apply in relation to the employees under State and Territory laws;

FWA may, on application by, or on behalf of, a person to whom the instrument applies, make an order that those terms of the instrument (and any terms that are ancillary or incidental to those terms) are applicable agreement-derived long service leave terms.

References to instruments

        (7)    References in this section to a kind of instrument (other than an enterprise agreement) are references to a transitional instrument of that kind, as continued in existence by Schedule 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

113A Enterprise agreements may contain terms discounting service under prior agreements etc. in certain circumstances

        (1)    This section applies if:

             (a)    an instrument (the first instrument) of one of the following kinds that came into operation before the commencement of this Part applies to an employee on or after the commencement of this Part:

                   (i)    an enterprise agreement;

                  (ii)    a workplace agreement;

                 (iii)    a workplace determination;

                 (iv)    a preserved State agreement;

                  (v)    an AWA;

                 (vi)    a pre-reform certified agreement;

                (vii)    a pre-reform AWA;

               (viii)    an old IR agreement;

                  (ix)    a section 170MX award; and

             (b)    the instrument states that the employee is not entitled to long service leave; and

             (c)    the instrument ceases, for whatever reason, to apply to the employee; and

             (d)    immediately after the first instrument ceases to apply, an enterprise agreement (the replacement agreement) starts to apply to the employee.

        (2)    The replacement agreement may include terms to the effect that an employee’s service with the employer during a specified period (the excluded period) (being some or all of the period when the first instrument applied to the employee) does not count as service for the purpose of determining whether the employee is qualified for long service leave, or the amount of long service leave to which the employee is entitled, under this Division or under a law of a State or Territory.

        (3)    If the replacement agreement includes terms as permitted by subsection (2), the excluded period does not count, and never again counts, as service for the purpose of determining whether the employee is qualified for long service leave, or the amount of long service leave to which the employee is entitled, under this Division or under a law of a State or Territory, unless a later agreement provides otherwise. This subsection has effect despite sections 27 and 29.

        (4)    References in this section to a kind of instrument (other than an enterprise agreement) are references to a transitional instrument of that kind, as continued in existence by Schedule 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

(8)    Clause 117, page 119 (lines 24 to 28), omit paragraph (2)(b), substitute:

             (b)    the employer has paid to the employee (or to another person on the employee’s behalf) payment in lieu of notice of at least the amount the employer would have been liable to pay to the employee (or to another person on the employee’s behalf) at the full rate of pay for the hours the employee would have worked had the employment continued until the end of the minimum period of notice.

(9)    Clause 121, page 122 (line 5), before “Section”, insert “(1)”.

(10)  Clause 121, page 122 (after line 11), at the end of the clause, add:

        (2)    A modern award may include a term specifying other situations in which section 119 does not apply to the termination of an employee’s employment.

        (3)    If a modern award that is in operation includes such a term (the award term), an enterprise agreement may:

             (a)    incorporate the award term by reference (and as in force from time to time) into the enterprise agreement; and

             (b)    provide that the incorporated term covers some or all of the employees who are also covered by the award term.

(11)  Clause 123, page 124 (lines 11 to 19), omit paragraph (3)(a).

(12)  Clause 186, page 176 (line 27), after “Note”, insert “1”.

(13)  Clause 186, page 176 (after line 29), after the note at the end of subclause (6), add:

Note 2:  However, this does not prevent FWA from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4).

(14)  Clause 738, page 545 (line 16), after “employment”, insert “or other written agreement”.

(15)  Clause 738, page 545 (after line 20), at the end of the clause, add:

       ;or (d)    a determination under the Public Service Act 1999 includes a term that provides a procedure for dealing with disputes arising under the determination or in relation to the National Employment Standards.

(16)  Clause 739, page 545 (line 26), omit “76(4)”, substitute “76(4), unless:

             (a)    the parties have agreed in a contract of employment, enterprise agreement or other written agreement to FWA dealing with the matter; or

             (b)    a determination under the Public Service Act 1999 authorises FWA to deal with the matter”.

(17)  Clause 739, page 545 (after line 26), at the end of subclause (2), add:

Note:   This does not prevent FWA from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).

(18)  Clause 740, page 546 (line 16), omit “76(4)”, substitute “76(4), unless:

             (a)    the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the person dealing with the matter; or

             (b)    a determination under the Public Service Act 1999 authorises the person to deal with the matter”.

(19)  Clause 740, page 546 (after line 16), at the end of subclause (2), add:

Note:   This does not prevent a person from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).

(20)  Clause 758, page 554 (lines 5 to 12), omit the clause, substitute:

758 Object of this Division

                 The object of this Division is to give effect, or further effect, to:

             (a)    the ILO Convention (No. 158) concerning Termination of Employment at the Initiative of the Employer, done at Geneva on 22 June 1982 ([1994] ATS 4); and

             (b)    the Termination of Employment Recommendation, 1982 (Recommendation No. R166) which the General Conference of the ILO adopted on 22 June 1982.

Note 1:  In 2009, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).

Note 2:  In 2009, the text of a Recommendation adopted by the General Conference of the ILO was accessible through the ILO website (www.ilo.org).

(21)  Clause 771, page 559 (lines 12 to 14), omit paragraph 771(c), substitute:

             (c)    the ILO Convention (No. 158) concerning Termination of Employment at the Initiative of the Employer, done at Geneva on 22 June 1982 ([1994] ATS 4); and

             (d)    the Termination of Employment Recommendation, 1982 (Recommendation No. R166) which the General Conference of the ILO adopted on 22 June 1982.

(22)  Clause 784, page 565 (lines 5 to 12), omit the clause, substitute:

784 Object of this Division

                 The object of this Division is to give effect, or further effect, to:

             (a)    the ILO Convention (No. 158) concerning Termination of Employment at the Initiative of the Employer, done at Geneva on 22 June 1982 ([1994] ATS 4); and

             (b)    the Termination of Employment Recommendation, 1982 (Recommendation No. R166) which the General Conference of the ILO adopted on 22 June 1982.

Note 1:  In 2009, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).

Note 2:  In 2009, the text of a Recommendation adopted by the General Conference of the ILO was accessible through the ILO website (www.ilo.org).

The government proposes a number of amendments to make clear that parties can agree to dispute resolution about the right to request flexible work arrangements and the right to request additional parental leave, including the requirement that an employer who refuses such a request has reasonable business grounds for doing so. This can occur through including terms about the right to request in an enterprise agreement, a contract of employment or another written agreement. Public Service determinations may also provide for such disputes about rights to request.

These amendments also clarify the intended interaction of entitlements in the National Employment Standards—these are items (4), (5) and (6)—with award or agreement terms that deal with the same subject matter, ensuring that the NES operate as minimum standards and do not impede flexibility in relation to entitlements beyond the NES, such as additional leave. Item (11) also ensures that all employees are entitled to a notice of termination in their first year of employment—that is, other than employees subject to an express exclusion, such as short-term casuals. This addresses an error in the bill as introduced. Items (9) and (10) deal with when modern awards and enterprise agreements are replaced, specifying when redundancy payments do not apply.

Items (1) and (7) allow employers who have developed long service leave arrangements in national collective agreements to retain these arrangements as their employees’ National Employment Standards guarantee entitlements in limited circumstances. In addition, item (7) provides for a fair and balanced transition to new long service leave arrangements where an employee’s long service leave entitlement has previously been excluded. As a catch-all, there are other minor technical changes that I will not go to in detail.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I indicate the Greens’ support for these amendments. I will note that we have amendments around some of these issues as well. We think ours are better, particularly those giving the FWA dispute resolution powers without the need for agreements. We believe those are better, but we will be supporting the government’s amendments.

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

I indicate that, whilst the running sheet suggests that there might be a conflict with opposition amendments, we do believe that they can coexist. The running sheet now reflects that and we will be moving our amendments at a later stage to complement the amendments moved by the government.

Question agreed to.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

by leave—I move government amendments (1) to (21) on sheet PT207:

(1)    Clause 12, page 14 (line 22), at the end of the definition of employee claim action, add “and paragraph 471(4A)(c)”.

(2)    Clause 12, page 14 (line 29), at the end of the definition of employee response action, add “and paragraph 471(4A)(d)”.

(3)    Clause 19, page 37 (after line 8), at the end of the clause, add:

Note:   In this section,employee and employer have their ordinary meanings (see section 11).

(4)    Clause 409, page 336 (line 17), before “about”, insert “only”.

(5)    Clause 409, page 336 (line 18), after “to”, insert “only”.

(6)    Clause 413, page 341 (line 22), omit “Neither”, substitute “None”.

(7)    Clause 413, page 341 (line 24), omit “the industrial action”, substitute “industrial action in relation to the agreement”.

(8)    Clause 413, page 341 (line 26), omit “the industrial action.”, substitute “industrial action in relation to the agreement;”.

(9)    Clause 413, page 341 (after line 26), at the end of subclause (7), add:

           ; (c)    a serious breach declaration in relation to the agreement.

(10)  Clause 417, page 344 (lines 17 and 18), omit “to whom the agreement or determination applies”, substitute “who is covered by the agreement or determination”.

(11)  Clause 417, page 344 (lines 19 and 20), omit “to which the agreement or determination applies”, substitute “that is covered by the agreement or determination”.

(12)  Clause 426, page 355 (line 7), after “disrupt”, insert “, for an extended period,”.

(13)  Clause 426, page 355 (line 9), before “reduce”, insert “significantly”.

(14)  Clause 426, page 355 (line 11), after “other”, insert “serious”.

(15)  Clause 426, page 355 (after line 11), after subclause (4), insert:

Requirement—harm is imminent

     (4A)    If the protected industrial action is threatening to cause significant harm as referred to in subsection (3), FWA must be satisfied that the harm is imminent.

(16)  Clause 438, page 363 (line 5), omit “apply to”, substitute “cover”.

(17)  Clause 470, page 383 (lines 19 to 31), omit subclause (4), substitute:

        (4)    If the industrial action is, or includes, an overtime ban, this section does not apply, in relation to a period of overtime to which the ban applies, unless:

             (a)    the employer requested or required the employee to work the period of overtime; and

             (b)    the employee refused to work the period of overtime; and

             (c)    the refusal was a contravention of the employee’s obligations under a modern award, enterprise agreement or contract of employment.

        (5)    If:

             (a)    the industrial action is, or includes, an overtime ban; and

             (b)    this section applies in relation to a period of overtime to which the ban applies;

then for the purposes of this section, the total duration of the industrial action is, or includes, the period of overtime to which the ban applies.

(18)  Clause 471, page 384 (lines 28 to 30), omit paragraph (4)(c), substitute:

             (c)    the employer gives to the employee a written notice stating that, because of the ban:

                   (i)    the employee will not be entitled to any payments; and

                  (ii)    the employer refuses to accept the performance of any work by the employee until the employee is prepared to perform all of his or her normal duties;

(19)  Clause 471, page 384 (after line 32), after subclause (4), insert:

     (4A)    If:

             (a)    an employer has given an employee a notice under paragraph (4)(c); and

             (b)    the employee fails or refuses to attend for work, or fails or refuses to perform any work at all if he or she attends for work, during the industrial action period;

then:

             (c)    the failure or refusal is employee claim action, even if it does not satisfy subsections 409(2) and 413(4), if the related industrial action referred to in paragraph (4)(a) is employee claim action; or

             (d)    the failure or refusal is employee response action, even if it does not satisfy subsection 413(4), if the related industrial action referred to in paragraph (4)(a) is employee response action.

(20)  Clause 474, page 387 (after line 25), after subclause (2), insert:

     (2A)    If:

             (a)    the industrial action is, or includes, an overtime ban; and

             (b)    this section applies in relation to a period of overtime to which the ban applies;

then, for the purposes of this section:

             (c)    the total duration of the industrial action is, or includes, the period of overtime to which the ban applies; and

             (d)    if paragraph (1)(b) applies—the period of 4 hours mentioned in that paragraph includes the period of overtime to which the ban applies.

(21)  Clause 539, page 433 (table item 14, paragraph (c) of column 2), omit “to which the enterprise agreement or workplace determination concerned applies”, substitute “covered by the enterprise agreement or workplace determination concerned”.

These provisions make a number of amendments to the industrial action provision of part 3-3 of the Fair Work Bill. Part 3-3 deals with industrial action, including protected action, ballots and restrictions on payments to employees relating to periods of industrial action. The key item in this group would be in three parts. It would make clear that industrial action will not be protected if it occurs whilst a serious breach declaration is in operation. The second leg, which amends clause 426 of the bill to modify the threshold of the FWA, is to apply when considering whether to suspend protected industrial action because the action is threatening to cause significant harm to a third party. The third is to amend the strike pay provisions to clarify the operation of the rules about deductions of pay in the context of overtime bans and partial work bans. The remaining amendments are, as a catch-all, technical in nature.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

Chair, I seek your guidance. The Greens would prefer to separate out item (9) because we do not support that item. Could we deal with that separately?

Carol Brown (Tasmania, Australian Labor Party) Share this | Link to this | Hansard source

I can put that item separately when we come to the vote.

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

I indicate on behalf of the opposition that, depending on the attitude of other senators, we would be making a similar request in relation to amendments (4) and (5) in as much as we support those amendments but oppose the rest. If an indication can be provided as to the particular stance that honourable senators are taking, we might be able to deal with this simply on the voices without the need to divide. I flag that at this stage to encourage senators to indicate their stance in relation to the various clauses to save us a division.

The Temporary Chairman:

To clarify, we will put amendments (4), (5) and (9) separately. If senators could indicate how they might be voting on those amendments, that will give a clearer indication as to the intent of the chamber.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I will speak to all of the amendments and then vote on them separately, if that suits the chamber. Most of these amendments are relatively minor amendments. We see them as putting in place even more barriers to what we believe are the legitimate rights of workers to take industrial action. The Greens do not support item (9). The bill already places a lot of restrictions on industrial action, and we believe this item, which relates to industrial action not being permitted where a serious breach order is in place, places further restriction on industrial action and we do not support it. We support items (12) to (15), suspension or termination of industrial action on significant harm. We support these amendments as an important strengthening of the test to be applied.

My comments need to be borne in the context that we disagree with the restrictions on industrial action in the bill. As people will see from the amendments we have circulated, we have our own amendments to oppose this provision in its entirety. So, while we do support this particular amendment, we do not support all of the provisions in the bill and we will be dealing with those later. In terms of items (17) to (21), partial work bans, we support these amendments in clarifying the application of the partial work ban provisions to overtime bans. We will be supporting those particular items.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I support the government’s position in relation to amendments (4), (5) and (9). They narrow the scope of protected industrial action. I understand from discussions with various employer groups that there is still sufficient scope for protected industrial action, but I prefer the government’s position in relation to this, and I will be supporting these amendments.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

We are not supporting the Greens amendment. The government considers that a more nuanced approach towards strike pay is required, particularly concerning overtime bans and partial work bans, which is in relation to the removal of the distinction between protected and unprotected industrial action. Also, the government does not support the Greens proposal to remove the requirement that protected industrial action must be in relation to permitted matters. Employers and employees are always free to negotiate about any matter they wish at the workplace, but the government believes that enterprise agreements under workplace relations legislation must remain connected to the employment relationship. We have said that quite clearly and loudly in respect of the Fair Work Bill.

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

In relation to the raft of 21 government amendments, I indicate the opposition’s support for amendments (4) and (5). We are not supportive of amendment (9) but I can indicate that, if it were to be a choice between the Greens and the government, we would support the government’s position.

In relation to items (12) to (15), I would be interested to know the attitude of colleagues on the crossbenches. These four amendments seek to raise the threshold of particular damage before a third party can take action and succeed before Fair Work Australia. For example, under the item of protected industrial action, the government is now seeking that the disruption has to be ‘for an extended period’. Rather than just showing disruption, you have to show it for an extended period. If you have disruption occurring for 24 hours but you do not know whether it is going to last for 24 hours or a week, you would have to wait a while before you could go to Fair Work Australia and say, ‘It’s for an extended period.’ Similarly, amendment (13) inserts the word ‘significantly’ and amendment (14) inserts the word ‘serious’. Amendment (15) inserts an extra subclause (4A), which says:

If the protected industrial action is threatening to cause significant harm as referred to in subsection (3), FWA must be satisfied that the harm is imminent.

You might suffer significant harm, but that is not good enough. It has to be imminent significant harm, although you might be able to show that the significant harm will be later on. For instance, in your supply of a particular material, the person to whom you are supplying might have a binding contract with you but the significant harm might not be imminent; it might be in a year’s time when you are about to renew a contract with a person to whom you are supplying. That is when the harm might be, but you might not be able to show that it is imminent. It might be when you are negotiating a contract 12 months down the track.

What I am suggesting to the Senate is that amendments (12), (13), (14) and (15) make it more difficult for third parties to be able to convince Fair Work Australia that they should intervene in certain industrial actions. If parties are damaged, the economy is damaged. The test that we as a coalition have been applying to all these measures is: what is its effect on jobs, what is its effect on small business and would it be seen as allowing excessive union power? In this case, we believe that those four amendments in particular will be damaging to jobs, especially small businesses. Further, because of the increased threshold, it will give unions more power. They can run a bit of a raid on companies and say, ‘It’s not going to be significant; it’s not going to be for an extended period of time; it’s only going to be for 24 hours,’ and as a result escape any intervention by Fair Work Australia.

I put that to my crossbench colleagues and say to them genuinely that, if they are serious about job protection and especially about small business protection—the engine room of jobs growth in this country—they might care to join with us in opposing amendments (12) to (15) inclusive. We would appreciate it if they could do us the courtesy of indicating their intention. I have put the opposition position on the record. For the record, we do not necessarily seek to confirm that by dividing the Senate if it is obvious that we are going to lose the vote. That is why I would be pleased if crossbench senators would indicate their view—but I dare say the minister has a response.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

I was going to outline the position of the government on amendments (12), (13), (14) and (15) so that the crossbenchers then are in a clear position to indicate to the chamber. Amendments (12) to (15) would amend clause 426 of the bill by modifying the threshold that Fair Work Australia is to apply when considering whether to suspend protected action because the action is threatening to cause significant harm to a third party. Amendments (12), (13) and (14) would amend clause 426(4) to require FWA to take into account the extent to which industrial action threatens—there are three parts—to disrupt ‘for an extended period’ the supply of goods or services to an enterprise carried on by a third party, ‘significantly’ reduce the capacity of the third party to fulfil a contractual obligation or cause other ‘serious’ economic loss to a third party. Amendment (15) will insert a new subclause 426(4A) to require FWA to be satisfied that the threatened significant harm to the third party is imminent before it suspends protected industrial action. In framing these amendments, the government has taken into account that this was a matter that was raised in the Senate committee report recommendation about these provisions—perhaps a better way to put it is that they were inspired by it.

Steve Fielding (Victoria, Family First Party) Share this | Link to this | Hansard source

This is an important issue. Protected industrial action is that—it is protected. The issue is that other businesses are innocent bystanders. There are very tough financial times at the moment. It means small businesses in particular do not have a lot of buffer sometimes. They can be innocent bystanders. I can see the dilemma that we have here. I appreciate that the minister outlined the changes the government has made. I did not hear much of a rationale for why we should stick with it. I heard the opposition put forward a pretty good rationale for why they should be changed. Obviously we need to look after protected industrial action, but I am not so sure that we should make it easier for those concerns not to be taken into account. I would be happy if the government could put forward an argument rather than going through the changes that they have made.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

It was the matter that was raised in recommendation 8 of the Senate committee report. I am finding it now. This was an issue that, as I understood, got significant time in the Senate committee report. The arguments that were raised during that—

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

It’s on page 80.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

Thank you, Senator Abetz. I was going to get there eventually!

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

I’m here to help!

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

The report said:

The committee majority recommends that it would be desirable to ensure consistency of the drafting between these two provisions by providing that where industrial action threatens harm the threat should be imminent, and the harm to the third party should be economic harm.

       …         …         …

The committee majority notes the high threshold for FWA to order the suspension or termination of industrial action. It notes the likelihood that this power would be exercised only rarely in recognition of the right for employees to take protected action.

The new system may attract some criticism in that the new system allows for a fairer, more proportional response than under the current arrangements. That seems to be what we are putting forward. Whether you accept that the current regime may operate unfairly for those where FWA is called in too early, it may be that industrial action can progress. Your particular enterprise level agreement may be circumvented very early in the piece by the use of the current terminology. This is an obvious way of ensuring that there would be three tests to allow Fair Work Australia to intervene and then use these as a way to highlight what we are looking for: disrupt for an extended period the supply of goods or services to an enterprise carried on by the third party, significantly reduce the capacity of the third party to fulfil a contractual obligation or cause serious economic loss to a third party.

The provision is a modification of the existing provision. Senator Cameron raised questions about Australia’s international obligations in relation to the suspension of protected action. DEEWR advised that the department considers that the provisions of clauses 423, 424 and 426 are consistent with Australia’s international obligations under the ILO Freedom of Association and Protection of the Right to Organise Convention. It is about ensuring that we have the ILO ability to raise this issue and ensuring that we have the appropriate test in the legislation. It is about a balance between what might be considered to operate too harshly and that which might allow those parties, if there is a need to go to the commission if a business is suffering, or alleging that it is suffering, from industrial action, to then put that case and for Fair Work Australia to then be guided in its determination—and it would be guided by those three points that I have outlined.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

As I read clause 426(4) now, it says:

FWA may take into account any matters it considers relevant including the extent to which the protected industrial action threatens to—

Then there is a debate about the amendments being sought to insert ‘for an extended period’ after ‘disrupt’, ‘significantly’ before ‘reduce’ and ‘serious’ before ‘economic loss’. My question to the minister is: isn’t it the case that there is already a fair degree of discretion built in on the part of Fair Work Australia to consider these matters? It is appropriate to have that level of discretion there so that trivial matters would not be considered. But would further including a significant qualification, which is what is being proposed, not fetter unduly the discretion of FWA to deal with these matters? In terms of current case law, could the minister advise what the status quo is in terms of any precedents that have been set, both for this type of wording and the wording for the higher threshold, which is what is being sought by putting in ‘significantly’, ‘for an extended period’ and ‘serious’ economic loss?

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

We will have a look to see if there is any case law, though I cannot recall any; it has not been widely used. This is about, if we just come back a fraction, when the Fair Work Bill allows employees to take protected industrial action within, if I could call them so, the fair-but-tough rules. You must focus on the operative provision. If you look at the current provision we are amending, which is clause 426, the FWA is required to suspend protected action if action is being engaged in and it is satisfied that clause 426(1) has been met. The clause then goes through what FWA’s actions must be. But this is about third parties—those at the margin. Looking at it in the broader sense, if there is a major supplier to a major company and that supplier is disrupted, you can see that that would quite easily fall within ‘disrupt for an extended period the supply of goods’, ‘significantly reduce the person’s capacity’ or cause serious economic harm, because the second business relies on the supply of parts or what have you from the first business. If one were to go on strike or take industrial action of any particular nature, that could disrupt the flow of goods or services to the third party. It provides guidelines for Fair Work Australia to make that assessment and judgment within those parameters.

What the current provision, though, does not take into account—and that is why we are seeking to amend those three parts there—is when a third party gets a lot further away from the major supplier. It is easy to imagine a parts manufacturer supplying parts to an assembly plant. If the employees of the parts manufacturer were to take industrial action which could stop or disrupt the supply of parts to the assembly production line then you could have a third party going to Fair Work Australia, and clearly it would fall under clause 426 quite easily under the current provisions. I have no doubt about that. But if you then go to a third party at the periphery—I think they use the supply of pies to an individual pie van as an example, though I am not a fan of pies; maybe I should not say that on the record!—and say that—

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

That’s very un-Australian!

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

Maybe we will not use a pie van then! If we use another small, individual business which is a third party to an individual supplier, but which is quite well away in the sense that it is a small, individual party, clause 426 might allow them to intervene in protected industrial action which has been taken at a large bakery or bread manufacturer who supplies to a whole range of distributors which then supply to a broad market. But one of those third parties right at the periphery could put its hand up under clause 426 and potentially argue that it is being significantly affected by that action and therefore seek to remove the protection from the employees of the manufacturer of pies or the bakery to be able to take protected industrial action in furtherance of their enterprise-level agreement.

We have sought to ensure that, when Fair Work Australia looks at those cases at the margin, it can take all of the circumstances into account and turn to those which ‘disrupt for an extended period’, ‘significantly reduce’ or cause serious economic loss. If it were to cause serious economic loss then there is an argument that those parties should be heard and have the opportunity to argue that the protected industrial action should cease. But if it is well and truly a third party who is at the margin then Fair Work Australia can turn to ‘take into account … the extent to which the protected industrial action threatens to’. We are seeking to ensure that clause 426 operates fairly—in other words, that we get the balance right—between those who are at the margin of the area rather than what generally comes to mind, which is those who are major suppliers or contractors, where the examples are pretty straightforward and usually uncontested, in the sense that those parties will certainly make an application and go to Fair Work Australia.

Steve Fielding (Victoria, Family First Party) Share this | Link to this | Hansard source

All this talk about pies is making me awfully hungry, actually. This is an important matter, so we are not wasting time here at all. From what I have heard, making these changes would make it even harder to look at the impact on a third party. We have Fair Work Australia, which is an independent umpire. I am more inclined to stick with what we have in the current bill, rather than adding in higher hurdles to jump over. If there is a real problem with this particular issue, parliament can come back and make some other changes. I do not think that we should take that lightly. I believe that protected industrial action should be okay, but we have to make sure that we consider the third parties. We should not make it too hard for them to make a claim. Fair Work Australia can adjudicate and be the policeman or the independent umpire. That is what this new legislation is trying to do. We should let them do their job and not make it even harder for a third party to claim that they are being impacted. I am inclined to leave the bill as it is in regard to items (12), (13), (14) and (15).

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

Earlier, you asked whether there have been any decisions made in respect of it. There are two that we are aware of, the AMWU and the CEPU and Ford case—I can give you the reference for that or we can dig it up—and the AEU and the Northern Territory Department of Education and Training case. The latter was overturned on appeal. That is the only case law that surrounds this. Action is not often taken in this area.

We are talking about ensuring that within the fair and tough rules we get the balance right and we ensure that we give sufficient guidance to Fair Work Australia about dealing with those provisions. We have erred on the side of providing more guidance; more words. I accept that can lead to people thinking that maybe it should be left at the simple rule under 426. We have tried to get the balance right by providing that guidance so that Fair Work Australia comes to the correct decisions in this area.

It is a significant step to remove someone’s right to a particular protected industrial action once they have commenced it and they are seeking to further their claims. For a third party who is significantly removed from the remote action to put their hand up and say, ‘We think that the right to this protected industrial action should be removed under provision 426.’ That might happen because the industrial action is adversely affecting an employer or an employee who will be covered by the proposed enterprise agreement. I will not go through the whole provision.

We have taken on board what the Senate committee recommended. That cannot be ignored lightly. The committee recommended this, and the government does take those committee reports seriously. We looked at what we could do and, inspired by that recommendation, came up with a form of words which we think encapsulates all of those circumstances and allows Fair Work Australia to come to the correct decision when looking at these matters. There is also this clause:

... if it—

FWA—

is satisfied that the protected industrial action has threatened, is threatening or would threaten to endanger the life, the personal safety, health or welfare of the population ... or to cause significant damage to the Australian economy ...

That remains in the picture. We are looking at damage that is substantively economic.

If I could reverse this—although the advisers might think otherwise—if you are a large company, you will have many distributors, sub-distributors and sub-sub-distributors. They are all third parties. If anywhere down the chain a third party puts their hands up and says, ‘I’m being threatened and I want to stop this action,’ you might find that under provision 426 they are able to succeed in that argument. This is where balance comes in. Those who are seeking to take protected industrial action in furtherance of their claim, which might be a large work force of 1,000 or 2,000 people, might be able to be stymied—that protection is being removed—because of a third party.

It may be that that third party has a serious case. What we have said in respect of that is they will have to meet certain criteria. They will not be able to put their hand up under the broader section, but there will be three criteria so that Fair Work Australia can focus in on any real harm and determine where the harm should fall. Should it fall on those seeking to take protected action in furtherance of their collective agreement or should the harm fall on the third party? We will not determine that; Fair Work Australia will determine where the onus lies and where the harm should fall. Should the harm be the removal of the right to a protected industrial action or should the harm be to the third party? We wanted to ensure that Fair Work Australia has clarity around those provisions.

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

Very briefly, in relation to this I think, with respect, the minister is wrong and I will go through the reasoning as to why. But a very important principle here, which the minister I think inadvertently talked about, is—and potentially he is accepting this—that a small business can be sacrificed for the sake of trade union action. That is basically what he said: if they are further down the chain, should that one individual pie seller happen to go out of business it will have no economic effect generally on Australia, and these other workers should be entitled to have a strike even if it means a small business goes out the door backwards.

With the tests that we as a coalition are consistently applying to each one of these amendments, this is an example of one where there would be excessive union power at the expense of small business and jobs. I invite crossbench senators—and I understand that Senator Xenophon, who is at present standing next to the minister engaged in a conversation with government advisers, does need to speak to the minister and advisers from time to time—

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

Senator Ludwig interjecting—

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

I know, unfortunately, that I will not convince you; what I am trying to do is attract the attention of Senator Xenophon ear because my advocacy on this matter may well decide whether or not we divide. With great respect to Senator Xenophon, I refer him to section 426, subclause (3). This deals with the requirement concerning significant harm to a third party—the words ‘significant harm’ are included in the section’s heading. It states:

FWA must be satisfied that the protected industrial action is threatening to cause significant harm to any person …

It is already saying ‘significant harm’; then, in subclause (4) it states:

… FWA may take into account any matters it considers relevant—

and then goes through four or so different scenarios. What the minister is now saying is that not only do we need to prove significant harm but we now have to prove significant harm that will reduce significantly a person’s capacity to fulfil a contractual obligation. So it really is a double whammy.

In relation to the disruption of the supply of goods, it will have to cause significant harm and disrupt for an extended period. So you could potentially have significant harm that does not go on for an extended period. What you are doing is tying up Fair Work Australia and basically gutting it of any real and genuine discretion so that, for example, if the newspaper printers went on strike and I did not get my morning newspaper it would not allow me to run along to Fair Work Australia and say, ‘I am suffering harm.’ Although chances are it is better for me not to have read the newspaper in recent times! Fair Work Australia, in assessing it, would immediately say, ‘Does it cause significant harm?’ I would have thought the answer to that would clearly be no.

So there is the overriding, overarching test, which is that Fair Work Australia needs to find significant harm. You have to have significant harm and on top of that the disruption has to be for an extended period—that it has to reduce significantly the person’s capacity to fulfil a contractual obligation or cause other serious economic loss to the person. So you have got significant harm and serious economic loss. I would have thought that significant harm is the balancing part of this section of the bill and all these additions have been thrown in as a sop to some people. And with great respect to Senator Marshall, who chaired the Senate committee to which Senator Ludwig referred—and I think Senator Marshall did the job very well—the committee’s report contains only the Labor senators’ view on this. That ought to be kept in mind. I am concerned about how these extra qualifications will apply with, say, a stevedoring strike because, for example, one day of disruption would not be regarded as an extended period of time, but if you have perishable goods it could be very damaging. That is why allowing Fair Work Australia to determine whether it would cause significant harm is the test, and then those four categorisations are important.

It is also interesting to note that the Labor senators’ recommendation did not have the suggestion of all the amendments that are in here, only (4)(a) and the suggestion that it should only be economic harm, whereas these amendments, thank goodness, do not take up that suggestion. I say to the crossbenches that we believe this is a very important aspect which unduly gives power to unions at the expense of small business and jobs.

Steve Fielding (Victoria, Family First Party) Share this | Link to this | Hansard source

To hopefully break a deadlock here, under section 426—and given subclause (3), which you have just been through, so I will not repeat it—in subclause (4) it says that the FWA ‘may’, and I think we should not be putting overly restrictive abilities for third parties to make a claim. Fair Work Australia should be able to look at it and may take into account those items. So I think we can still allow Fair Work Australia to adjudicate on the issue. I do not think we want to overly restrict people from making a particular claim.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

What I really wanted to do, in reply to Senator Abetz’s argument, was to look at clause 426. This is the really critical part. It says that the ‘FWA must’. So there is no discretion there. If you go to the dot point about ‘any threatened disruption to the supply of goods or services to an enterprise carried on by a third party,’ that is where the issue—

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

Which dot point? There are no dot points.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

If you go to clause 426 there are three dot points in a row, then at 1726 there are two dot points. These are the factors that the FWA may take into account when determining when protected industrial action has threatened to cause significant harm.

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

Where are the dot points? I don’t understand what you mean by dot points.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

We are on page 270 of the EM.

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

I thought you were in the bill.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

We can either use the bill or the EM but the EM sometimes puts the argument in a nutshell.

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

This EM does not deal with the amendments.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

No. Let me come to the argument. The amendment, of course, amends this provision. What I am simply setting out, which is taking longer than I hoped, is what the current provision is. Then I will say why your argument, although well reasoned, is wrong. Then I will say why you should support ours. Allow me to continue. Clause 426 uses the word ‘must’ and then if you drop down to the third party under 1727, at the first dot point, you find it says:

any potential damage to the ongoing viability of an enterprise carried on by the third party ...

And the second dot point says:

any threatened disruption to the supply of goods or services to an enterprise carried on by the third party ...

The amendment seeks to give greater guidance to Fair Work Australia to use the dot points that I have just indicated. I think Senator Abetz was arguing that those points are cumulative but they are not; they are alternatives. So it refers to disruption for an extended period, significantly reduce or cause serious economic loss to a third party. So if the case that was being raised was a small business down the track, and action was causing serious economic loss to a third party, then the protection is still there. It has not disappeared. It has not been watered down or changed. If it is a third party’s capacity to fulfil a contractual obligation or fulfil the majority of its business is significantly reduced, the protection is not impaired—nor is it if there is a disruption, for an extended period, of the supply of goods or services to an enterprise carried on by a third party.

At the moment we are looking at the two provisions. The first existing provision under 426 says ‘must suspend protected industrial action’ and then it goes on to talk about any ‘threatened disruption to the supply of goods or services’. We are seeking to take into account that where that provision operates it may not get the balance right between the rights of the employees to take protected industrial action and the rights of a third party not to have it cause serious economic loss to them, or to significantly reduce their capacity to fulfil a contractual obligation, or disrupt for an extended period the supply of goods or services to an enterprise carried on by them.

This is all put within the framework that these are factors that the FWA may take into account when determining whether protected industrial action has threatened to cause significant harm to a third party as specified in 426(4) under the existing EM. So it is still a decision that Fair Work Australia will make with respect to that, taking all those circumstances into account. They will obviously be able to hear from both parties and those interveners, should there be any, in those matters.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

Could I indicate that, despite the magnificent advocacy skills of Senator Abetz, I am in a position where I support the government’s amendments for these reasons. As I read it, from a point of view of statutory interpretation, subclause (3) would be the primary clause looking at the issue of significant harm. That is still the primary criteria. Subclause (4) looks at factors that may be taken into account by Fair Work Australia. Whilst I understand the concerns that have been expressed by the opposition, and by Senator Fielding, in respect to this, I am significantly comforted by subclause (4)(a) where—the government has not sought to amend it—reference is made to any protected industrial that threatens to ‘damage the ongoing viability of an enterprise carried on by the person’. I see that as a fairly broad catch-all clause.

In any event, it is my understanding, from the point of statutory interpretation, that the primary clause would be subclause (3) where significant harm is the test, and subclause (4) relates to a number of matters that may be taken into account in the exercise of the FWA’s discretion.

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

Can I ask, across the chamber, as to what Senator Fielding’s attitude is in relation to opposing government amendments (12) to (15) because if, unlike Senator Xenophon—leaving my advocacy skills out of the question—he is convinced that they should be voted against, then I would seek to call a division in relation to amendments (12) to (15) because then those amendments would be lost. But if his indication is that he would go along with the government then I put on record the opposition’s concern about these amendments but I would not seek to divide the chamber in a formal division.

Steve Fielding (Victoria, Family First Party) Share this | Link to this | Hansard source

As I said, I have listened to the debate and I have raised my concerns. I think that again the word ‘may’ in subclause 426(4) means that Fair Work Australia can work it out. We have set Fair Work Australia to be the independent umpire, and I do not see the justification for increasing the hurdles for someone making a claim. Despite the arguments put forward, you still have subclause (3):

(3) FWA must be satisfied that the protected industrial action is threatening to cause significant harm to any person other than:

(a)

a bargaining representative for the agreement—

and it goes on. But subclause (4) I think allows people and other third parties to have a look at that and say, ‘I think I’ve got a claim that should be considered by Fair Work Australia.’ Fair Work Australia is big enough to look after itself, it is a statutory body and it is accountable to parliament—and we can review it. If there is a problem, I think I would rather err on the side of allowing the effect protected industrial action has on third parties to be taken into account, so I am inclined to leave the bill the way it is at the moment.

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

I think Senator Siewert had something in relation to amendment (9), but I indicate that, whilst we oppose, we will not be seeking to divide up until we get to amendments (12) to (15) inclusive. I will be asking that amendments (12) to (15) inclusive be put on block.

Russell Trood (Queensland, Liberal Party) Share this | Link to this | Hansard source

I understand that it has been agreed that we are going to deal with these amendments in tranche form. I just want to clarify that we have the right blocks. First, there will be a vote on items (1) to (3), (6) to (8) and (10) to (21); second, there will be a vote on (4) and (5); and, third, there will be a vote on (9). That is my understanding of the situation.

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

Could I indicate that, given the feeling around the chamber, I think amendments other than (12) to (15) will be carried so we do not need a separate vote on (4) and (5); we can include them.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

It might be easier if I just say: could you please register the Greens’ opposition to amendment (9).

Russell Trood (Queensland, Liberal Party) Share this | Link to this | Hansard source

The question is that amendments (1) to (11) and (16) to (21) be agreed to.

Question agreed to.

The question now is that amendments (12) to (15) be agreed to.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

by leave—I move government amendments (1) to (14) on sheet RE403:

(1)    Clause 12, page 19 (line 8), omit “means redundancy”, substitute “means redundancy or termination payment”.

(2)    Page 137 (after line 3), after clause 140, insert:

140A Terms for long distance transport employees

                 A modern award may include terms relating to the conditions under which an employer may employ employees to undertake long distance transport work.

(3)    Page 142 (after line 8), after clause 145, insert:

145A Terms about consultation and representation

                 Without limiting paragraph 139(1)(j), a modern award must include a term that:

             (a)    requires an employer to whom the award applies to consult the employer’s employees to whom the award applies about major workplace changes that are likely to have a significant effect on the employees; and

             (b)    allows for the representation of those employees for the purposes of that consultation.

(4)    Clause 154, page 144 (line 27), omit paragraph (1)(b), substitute:

             (b)    are expressed to operate in one or more, but not every, State and Territory.

(5)    Clause 287, page 257 (line 21) to page 258 (line 4), omit the clause, substitute:

287 When national minimum wage orders come into operation etc.

Orders come into operation on 1 July

        (1)    A national minimum wage order that is made in an annual wage review comes into operation on 1 July in the next financial year (the year of operation).

Setting of different wages or loadings only permitted in exceptional circumstances

        (2)    The national minimum wage or the casual loading for award/agreement free employees set by the order must be the same for all employees, unless:

             (a)    FWA is satisfied that there are exceptional circumstances justifying setting different wages or loadings; and

             (b)    the setting of different wages or loadings is limited just to the extent necessary because of the particular situation to which the exceptional circumstances relate.

        (3)    A special national minimum wage set by the order for a specified class of employees must be the same for all employees in that class, unless:

             (a)    FWA is satisfied that there are exceptional circumstances justifying setting different wages; and

             (b)    the setting of different wages is limited just to the extent necessary because of the particular situation to which the exceptional circumstances relate.

Adjustments taking effect during year of operation only permitted in exceptional circumstances

        (4)    The order may provide that an adjustment of the national minimum wage, the casual loading for award/agreement free employees, or a special national minimum wage, set by the order takes effect (whether for some or all employees to whom that wage or loading applies) on a specified day in the year of operation that is later than 1 July, but only if:

             (a)    FWA is satisfied that there are exceptional circumstances justifying the adjustment taking effect on that day; and

.             (b)    the adjustment is limited just to the particular situation to which the exceptional circumstances relate.

When orders take effect

        (5)    The order takes effect in relation to a particular employee from the start of the employee’s first full pay period that starts on or after 1 July in the year of operation. However, an adjustment referred to in subsection (4) takes effect in relation to a particular employee from the start of the employee’s first full pay period that starts on or after the day specified as referred to in that subsection.

(6)    Clause 289, page 258 (line 27) to page 259 (line 2), omit subclauses (2) and (3), substitute:

        (2)    FWA must publish all submissions made to FWA for consideration in the review.

        (3)    However, if a submission made by a person or body includes information that is claimed by the person or body to be confidential or commercially sensitive, and FWA is satisfied that the information is confidential or commercially sensitive, FWA:

             (a)    may decide not to publish the information; and

             (b)    may instead publish:

                   (i)    a summary of the information which contains sufficient detail to allow a reasonable understanding of the substance of the information (without disclosing anything that is confidential or commercially sensitive); or

                  (ii)    if FWA considers that it is not practicable to prepare a summary that would comply with subparagraph (i)—a statement that confidential or commercially sensitive information in the submission has not been published.

        (4)    A reference in this Act (other than in this section) to a submission under this section includes a reference to a summary or statement referred to in paragraph (3)(b).

        (5)    FWA must ensure that all persons and bodies have a reasonable opportunity to make comments to FWA, for consideration in the review, on the material published under subsections (2) and (3).

        (6)    The publishing of material under subsections (2) and (3) may be on FWA’s website or by any other means that FWA considers appropriate.

(7)    Clause 306, page 266 (lines 29 and 30), omit all the words from and including “to the extent” to and including “equal remuneration order”, substitute “in relation to an employee to the extent that it is less beneficial to the employee than a term of an equal remuneration order that applies to the employee”.

(8)    Clause 324, page 282 (line 2), before “An”, insert “(1)”.

(9)    Clause 324, page 282 (after line 22), at the end of the clause, add:

        (2)    An authorisation for the purposes of paragraph (1)(a):

             (a)    must specify the amount of the deduction; and

             (b)    may be withdrawn in writing by the employee at any time.

        (3)    Any variation in the amount of the deduction must be authorised in writing by the employee.

(10)  Clause 326, page 283 (line 6), omit “the”, substitute “an”.

(11)  Clause 326, page 283 (lines 10 to 12), omit all the words from and including “the deduction” to the end of subclause (1), substitute:

either of the following apply:

             (c)    the deduction or payment is:

                   (i)    directly or indirectly for the benefit of the employer, or a party related to the employer; and

                  (ii)    unreasonable in the circumstances;

             (d)    if the employee is under 18—the deduction or payment is not agreed to in writing by a parent or guardian of the employee.

(12)  Clause 333, page 289 (line 9), omit “The”, substitute “(1) Subject to this section, the”.

(13)  Clause 333, page 289 (after line 10), at the end of the clause, add:

        (2)    A regulation made for the purposes of subsection (1) has no effect to the extent that it would have the effect of reducing the amount of the high income threshold.

        (3)    If:

             (a)    in prescribing a manner in which the high income threshold is worked out, regulations made for the purposes of subsection (1) specify a particular matter or state of affairs; and

             (b)    as a result of a change in the matter or state of affairs, the amount of the high income threshold worked out in that manner would, but for this subsection, be less than it was on the last occasion on which this subsection did not apply;

the high income threshold is the amount that it would be if the change had not occurred.

(14)  Page 289 (after line 10), at the end of Division 3, add:

333A Prospective employees

                 If:

             (a)    an employer, or a person who may become an employer, gives to another person an undertaking that would have been a guarantee of annual earnings if the other person had been the employer’s or person’s employee; and

             (b)    the other person subsequently becomes the employer’s or person’s employee; and

             (c)    the undertaking relates to the work that the other person performs for the employer or person;

this Division applies in relation to the undertaking, after the other person becomes the employer’s or person’s employee, as if the other person had been the employer’s or person’s employee at the time the undertaking was given.

We have turned to other safety net entitlements. I will provide an overview and I will deal with item 2 separately so that the opposition can follow the debate. I will leave item 2 aside for a moment; my remarks will not deal with item 2. We might talk a little bit more about that shortly.

The government proposes a series of amendments in relation to the provisions dealing with modern awards and wages. The amendments would clarify the scope of industry-specific redundancy schemes that can be included in modern awards and would make further provision for the types of matters that can or must be included in modern awards, requiring awards to provide for consultation and representation where majority change is proposed. They would provide limited scope for Fair Work Australia to delay wage increases through national minimum wage orders, similar to that which already exists in the bill for award wage rates. They would provide additional protection for employees in relation to deductions from wages and ensure that the amount of the high-income threshold cannot be reduced through regulations. The high-income threshold determines when an award ceases to apply to an employee with guaranteed annual earnings. They would determine whether an award-agreement-free employee has access to unfair dismissal remedy. Lastly, they would enable an employer and prospective employee to agree to a guarantee of annual earnings before the prospective employee commences. I did seek leave to move amendments (1) to (14) together but I may leave item 2 out.

Russell Trood (Queensland, Liberal Party) Share this | Link to this | Hansard source

Minister, are you happy to have a cognate debate on these matters? Perhaps you can leave the question of how we vote on this matter until a little later.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

I am advised that in relation to amendment (2) we might prefer to leave that to a later hour.

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

Until a later hour?

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

Yes. I seek leave to withdraw government amendments (1) to (14) on sheet RE403.

Leave granted.

by leave—I move amendment (1) and amendments (3) to (14) on sheet RE403 and that amendment (2) on sheet RE403 be held over until a later hour.

The Temporary Chairman:

Is leave granted?

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

Unfortunately not, as we would prefer the whole debate in this area to take place together. We have very real reservations about amendments (2) and (3) and we would not want a position where they go through and then are changed in relation to amendment (2) impacting in other areas, if the government would be minded. I understand some information still needs to be provided to one of the Independent senators, which is fully understood.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

by leave—I move government amendments (2), (10) and (11) on sheet QC300 together:

(2)   Clause 12, page 26 (after line 22), after the definition of registered employee association, insert:

(10) Clause 391, page 325 (after line 28), after subclause (1), insert:

     (1A)    If:

             (a)    the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and

             (b)    that position, or an equivalent position, is a position with an associated entity of the employer;

the order under subsection (1) may be an order to the associated entity to:

             (c)    appoint the person to the position in which the person was employed immediately before the dismissal; or

             (d)    appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(11)  Clause 391, page 326 (line 7), at the end of paragraph (2)(b), add “, or (if subsection (1A) applies) the associated entity”.

Amendments (2) and (10) reflect the government’s commitment to reinstatement as the primary remedy for unfair dismissal. These amendments will ensure that reinstatement remains an available remedy in cases where there has been a corporate restructure in the time since the person was unfairly dismissed. The amendments will also ensure that an order for reinstatement applies to the appropriate employer in the circumstances, and this will ensure that an employee is not denied reinstatement simply because a corporate restructure has occurred between their dismissal and an FWA finding that he or she should be reinstated.

Amendment (11) is a minor technical and consequential amendment. It allows a second legislative note to be included. Amendment (12) of course would insert another legislative note following clause 524 of the bill. It explains that an enterprise agreement or contract of employment may make additional provision for stand-down including consultation or notice requirements.

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

The opposition opposes these amendments. We say in large part that the new reinstatement provisions are impractical and do not take into account the business dynamic of the associated entity or any restructure. They may also lead to a redundancy situation if there is no position available for the returning employee. There is a suggestion that there could be a reinstatement by an associated entity and I am just wondering about the potential of that. To make the case, let us say there is a company that runs two types of operations: one in southern Tasmania and one in the Torres Strait Islands. If the dismissal were to take place in Tasmania, but there were a vacancy or possibility of employment in this business’s Torres Strait Island enterprise, would that be a possibility and who would need to incur the costs of removal et cetera for that employee? I provide that as an extreme hypothetical to make the case to see if that would be the potential reach and application of this amendment.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

I see the point that is trying to be made, but reinstatement would still be a case of whether it is reasonable or practicable. In the position that you have outlined, Fair Work Australia could look at this issue, but it would be in the framework of whether it would be reasonable or practicable. In that circumstance I cannot say whether it would be or would not be. The person might have relatives there; they might have lived in that place and may in fact be returning home; they might have been simply working in Tasmania for a short period of time. Those are the circumstances that sometimes can get complex when you use examples. I usually try not to use examples, even a pie cart, which I am eternally sorry for. When you consider the circumstances, it is broadly to apply when you want to bring in a corporate restructure since the time the person was unfairly dismissed. There are a couple of thresholds that would need to be taken into account.

Then, of course, reinstatement occurs where it is practicable. Fair Work Australia would have to turn their mind to that, and that would come down to the circumstances of the individual in the particular case. If the individual was a local resident of that area and had left and worked in another place or was a longstanding resident, a Tasmanian through and through, those circumstances would be taken into account by Fair Work Australia. Quite frankly, I think that is where it should lie. The amendment will ensure that an order for reinstatement applies to the appropriate employee in the circumstances. It means that it is not an automatic right.

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

It may be practicable, it may be reasonable—that was not the question. The question was: who would incur the cost of moving the person for this practicable and reasonable relocation, to employ the language of the minister?

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

This is one of the difficulties: we always appraise ourselves with examples. It would depend on the employer, the circumstances of the restructure and whether the primary instrument that they were employed under included costs for relocation and in what circumstances. You would then have to turn to those provisions to see whether or not that would in fact apply, where the employer has restructured the new entity at the time of dismissal. One of the things Fair Work Australia can do is, where practicable, reinstate. It may not be able to. I am advised that it would be very unlikely to make such an order in those circumstances.

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

That’s clear!

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

It would depend. This is the difficulty when we come up with an extreme circumstance which may or may not have all the facts around it. The difficulty will always confront us. In the example I gave, what happens if the person that we are talking about was in fact a resident of—I think the example you used was Thursday Island—

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

The Torres Strait Islands. All I am asking about is the cost. We accept that it’s practicable; we accept it’s reasonable. The cost is the only question.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

Fair Work Australia would be unlikely to make such a call, but it would be a matter for Fair Work Australia.

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

If I can put it another way: Fair Work Australia could make such an order if the circumstances around the case warranted it in Fair Work Australia’s determination.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

Just to be correct about that, they can order to restore lost pay. I am looking at the Fair Work Bill 2008, page 326, under 392(3):

If FWA makes an order under subsection (1) and considers it appropriate to do so, FWA may also make any order that FWA considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.

So it is conditional upon remuneration lost. That is where I went back to the earlier provision as to what the instrument had in it to determine whether or not it was part of their remuneration, part of their enterprise agreement. All being equal, and where it is not part of their agreement or part of their provision, it would be unlikely to be included in that provision. In other words, they could not restore the person or pay those costs if they were costs that were in futuro, if they were going to have to be undertaken. The bill says:

In determining an amount for the purposes of an order under 14 subsection (3), FWA must take into account ...

It shows the matters it takes into account. It does not to say that it can pay the costs of relocation in those circumstances.

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

To get it clear, this does not only apply to a company or a business restructure; it also applies, as I understand it, to an unfair dismissal situation. Under this regime, reinstatement is going to be the thing that Fair Work Australia must concentrate on, under section 390(3). Therefore, if there is the possibility of Fair Work Australia ordering the removal costs for somebody to another associated entity, the prospect of what we have been concerned about—go-away money being paid—will become a very real and live issue because an employer could be confronted not only with the issue of reinstating somebody within their business enterprise but incurring substantial removal costs.

In those circumstances, I know what I would be doing if I were acting for that particular employee. I would be saying, ‘There’s a real chance of some sort of cost being incurred. Just sling me $3,000 or $4,000 and we’ll go away’—and we would be right back in the circumstance which we believe was not conducive to employers taking on employees. We have always been concerned about this, but in a time of rising unemployment we are especially concerned. I do not intend to prolong the debate in relation to this matter other than to indicate our opposition to it. If there is a chance that one or two of the crossbench senators were to come with us we would, of course, call a division. If not, I think I have registered the coalition’s views in relation to this matter as being something that, at the end of the day, will be very anti jobs and a burden in particular for small business, which are two of the three benchmarks that I have been talking about throughout the consideration of this bill.

Steve Fielding (Victoria, Family First Party) Share this | Link to this | Hansard source

I suppose I had better at least make some comment on this. Senator Abetz, you have challenged the crossbenchers. I have listened to the arguments one way and the other. I think the government has it right on this one and I will go with what it has proposed. The arguments have been put forward. I understand the question that the opposition have raised about who pays for it, but it is the principle of reinstatement and I think that has to be worked out through that process. I will support the government on these amendments.

Russell Trood (Queensland, Liberal Party) Share this | Link to this | Hansard source

The question is that amendments (2), (10) and (11) on sheet QC300 be agreed to.

Question agreed to.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

by leave—I move government amendments (1) to (4) on sheet QC301:

(1)    Clause 318, page 276 (line 12), omit paragraph (3)(d), substitute:

             (d)    whether the transferable instrument would have a negative impact on the productivity of the new employer’s workplace;

             (e)    whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer;

              (f)    the degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer;

             (g)    the public interest.

(2)    Clause 319, page 277 (line 34), omit paragraph (3)(d), substitute:

             (d)    whether the transferable instrument would have a negative impact on the productivity of the new employer’s workplace;

             (e)    whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer;

              (f)    the degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer;

             (g)    the public interest.

(3)    Clause 320, page 278 (line 23), at the end of subclause (2), add:

      ; or (c)    to enable the transferable instrument to operate in a way that is better aligned to the working arrangements of the new employer’s enterprise.

(4)    Clause 320, page 279 (line 14), omit paragraph (4)(d), substitute:

             (d)    whether the transferable instrument, without the variation, would have a negative impact on the productivity of the new employer’s workplace;

             (e)    whether the new employer would incur significant economic disadvantage as a result of the transferable instrument, without the variation;

              (f)    the degree of business synergy between the transferable instrument, without the variation, and any workplace instrument that already covers the new employer;

             (g)    the public interest.

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

Could I seek the indulgence of the minister. Without showing him all my cards on this very vexed issue, I indicate that we would be minded to vote for the government’s amendments in the event that ours, dealing with a similar issue, were to be voted down. So I wonder, without delaying the Senate for too long, if the crossbenchers would be minded to indicate which preference they have.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

We can deal with yours first

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

That is what I was going to suggest, in the event that the crossbenchers showed some degree of interest. If they do not, it is a matter of regret but we accept the will of the Senate.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

I will withdraw the government’s amendments and allow Senator Abetz to move his. I seek leave to withdraw government amendments (1) to (4) on sheet QC301.

Leave granted.

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

by leave—I move opposition amendments (28) to (32) and (34) to (36) on sheet 5739 revised 2:

(28)  Heading to subclause 311(1), page 269 (line 10), omit “and transferring work”, substitute “, transferring work and time of transmission”.

(29) Clause 311, page 269 (lines 21 and 22), omit paragraph 311(1)(d), substitute:

             (d)    the new employer has become the successor, transmittee or assignee of the business or part of the business in which the employee worked for the old employer.

             (e)    the time at which the new employer becomes the successor, transmittee or assignee of the business being transferred is the time of transmission.

(30) Clause 311, page 269 (line 25), omit “paragraphs (1)(a), (b) and (c)”, substitute “paragraphs (1)(a), (b), (c) and (d)”.

(31) Clause 311, page 269 (line 28) to page 271 (line 2), omit subclauses 311(3) to (6), substitute:

        (3)    A person is also a transferring employee for the purposes of this Part if:

             (a)    the person is employed by the old employer at any time within the period of 1 month before the time of transmission; and

             (b)    the person’s employment with the old employer is terminated by the old employer before the time of transmission for redundancy reasons or for reasons that include redundancy; and

             (c)    the person becomes employed by the new employer in the business being transferred within 2 months after the time of transmission.

        (4)    A reference to a particular state of affairs existing in relation to a transferring employee immediately before the time of transmission is to be read as a reference to that state of affairs existing immediately before the person last ceased to be an employee of the old employer.

(32) Page 272, after line 2, after clause 313, insert:

313A Coverage of a transferable instrument

        (1)    Subject to subsection (3), a transferable instrument that covers the new employer and the transferring employee because of section 313 (or any other person because of another provision of this Part) ceases to have coverage on the earlier of:

             (a)    the date the instrument ceases coverage under its own terms;

             (b)    12 months after the transfer time.

        (2)    Subject to subsection (3), after the transferable instrument ceases to have coverage in accordance with subsection (1), the new employer and the transferring employee are covered by:

             (a)    the modern award which is expressed to cover the new employer and the transferring employee; or

             (b)    the enterprise agreement which is expressed to cover the new employer and the transferring employee;

whichever is most beneficial to the employee.

        (3)    If the redundancy pay provisions in the transferable instrument are more beneficial to the employee than the provisions in the instrument which would otherwise take effect under subsection (2), the redundancy pay provisions in the transferable instrument continue to cover the transferring employee until 24 months after the transfer time.

(34)  Clause 319, page 276 (lines 23 to 31), omit paragraphs (1)(a) and (b).

(35) Clause 319, page 277 (lines 14 and 15), omit paragraph (2)(b).

(36) Clause 319, page 277 (lines 19 to 22), omit paragraph (2)(d).

If the crossbenchers have already determined an attitude, then I do not seek to delay the Senate any further.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

If I can assist my colleagues, in particular Senator Abetz, I am minded to support the government’s position in relation to transfer of business rather than the opposition’s. I believe the government has come some way in dealing with some of the concerns with respect to the transfer of business and I therefore support the government’s position.

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

It looks as though without any advocacy I am just as successful with Senator Xenophon, despite his very kind comments about my advocacy, so I might as well save my breath! I just put on the record, seriously, the coalition’s concerns. We would have preferred our amendments, but we accept that, other than for a senator not being present for a division, it would be very unlikely that our amendments would get up. We will not persist with them and, in those circumstances, we can move on to anticipate what the minister will say in relation to the amendments he will move and indicate opposition support for those amendments. I seek leave to withdraw opposition amendments (28) to (32) and (34) to (36) on sheet 5739 revised 2.

Leave granted.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

by leave—I thank Senator Abetz and move government amendments (1) to (4) on sheet QC301:

(1)    Clause 318, page 276 (line 12), omit paragraph (3)(d), substitute:

             (d)    whether the transferable instrument would have a negative impact on the productivity of the new employer’s workplace;

             (e)    whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer;

              (f)    the degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer;

             (g)    the public interest.

(2)    Clause 319, page 277 (line 34), omit paragraph (3)(d), substitute:

             (d)    whether the transferable instrument would have a negative impact on the productivity of the new employer’s workplace;

             (e)    whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer;

              (f)    the degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer;

             (g)    the public interest.

(3)    Clause 320, page 278 (line 23), at the end of subclause (2), add:

      ; or (c)    to enable the transferable instrument to operate in a way that is better aligned to the working arrangements of the new employer’s enterprise.

(4)    Clause 320, page 279 (line 14), omit paragraph (4)(d), substitute:

             (d)    whether the transferable instrument, without the variation, would have a negative impact on the productivity of the new employer’s workplace;

             (e)    whether the new employer would incur significant economic disadvantage as a result of the transferable instrument, without the variation;

              (f)    the degree of business synergy between the transferable instrument, without the variation, and any workplace instrument that already covers the new employer;

             (g)    the public interest.

These amendments deal with transfer of business. Items 1, 2 and 4 will amend clauses 318, 319 and 320 of the bill to insert three additional matters that FWA must take into account in deciding, in a transfer of business, whether to order that the old employer’s industrial instruments cover the new employer and transferring employees, order that the old employer’s industrial instruments cover the new employer and its existing employees and vary the old employer’s industrial instruments in their application to the new employer. These amendments are intended to ensure that, in addition to considering matters such as whether employees would be disadvantaged, FWA also has regard to the circumstances of the new employer. In particular, this includes the new employer’s financial position and the degree of alignment between any industrial instruments of the old employer and arrangements that already exist in the new employer’s enterprise. Item 3 will amend clause 320 of the bill to insert an additional ground on which the FWA may vary a transferable instrument where there is a transfer of business—namely, to enable the transferable instrument to operate in a way that is better aligned to the working arrangements of the new employer.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

The Greens oppose these amendments. We think the government got it right the first time. I am sorry about that, Minister. We believe the amendments pander to business and bias the factors Fair Work Australia are to take into account in not transferring instruments and therefore water down the employees’ rights. As I said, we think the government got it right last time. We were deeply concerned about the way transmission and transfer of business operated previously and we thought the government had taken the right steps in the bill. So we will be opposing these amendments.

Question agreed to.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

To bring back some order so that we do not get too far out, I think we are now going to an Australian Greens amendment on, if I am correct, sheet 5729. I am sorry, the one after that, on sheet 5744.

Steve Fielding (Victoria, Family First Party) Share this | Link to this | Hansard source

Chair, could we just stick with the revised 6 running sheet, because that would help the chamber be very orderly. It would be better if we could start on each amendment by giving the details of the running sheet and the page and then call out the amendment reference number. There are so many amendments here that we need to help the chamber if we can.

Russell Trood (Queensland, Liberal Party) Share this | Link to this | Hansard source

I think that is a sensible suggestion, Senator Fielding, but I am at the will of the chamber.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

I do understand the difficulty being confronted. What I was going to do was ask the Australian Greens to identify and move an amendment so that we can then deal with it. If I pass to Senator Siewert I am sure she will be able to describe it in that way and then we can deal with it.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I will just triple confirm that the amendment you are asking me to move is amendment (4) on sheet 5744. Sorry, is it amendments (1) to (3) on sheet 5744?

Russell Trood (Queensland, Liberal Party) Share this | Link to this | Hansard source

Yes; on page 3.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

by leave—I move:

(1)    Clause 65, page 76 (lines 5 to 8), omit subclause (1), substitute:

        (1)    An employee may request the employer for a change in working arrangements to assist the employee to care for someone who is:

             (a)    a child of the employee, or a child the employee has responsibility for the care of, if the child:

                   (i)    is under school age; or

                  (ii)    is under 18 and has a disability; or

             (b)    a person in need of care who is:

                   (i)    the spouse or de facto partner of the employee; or

                  (ii)    a member of the employee’s immediate family; or

                 (iii)    a member of the employee’s household.

(2)   Clause 65, page 76 (lines 27 to 29), omit subclause (4), substitute:

        (4)    If an employee makes a request in accordance with subsection (3):

             (a)    the employer must, within 28 days of receiving the written request, meet with the employee to discuss the request; and

             (b)    the employer must give the employee a written response to the request within 14 days of the meeting, stating whether the employer grants or refuses the request.

(3)   Clause 65, page 77 (after line 2), at the end of the clause, add:

FWA can review refusal of request

        (7)    If the employer refuses the request, the employee may apply to FWA to review the employer’s decision on the following grounds:

             (a)    because there has been a contravention of a requirement of this section; or

             (b)    because there has been a misunderstanding or misapplication of a fact relating to the application.

        (8)    The application must be made within 7 days after the employer gives the employee a written response under subsection (4), unless FWA is satisfied there are circumstances which justify a late application.

        (9)    FWA may make:

             (a)    an order for reconsideration of the request; and

             (b)    an award of compensation to be paid by the employer to the employee.

      (10)    The amount of compensation must be an amount, not exceeding 26 weeks’ pay for the employee, as FWA considers fair in all the circumstances.

These Greens amendments relate to the right to request flexible working arrangements and the right to request extended parental leave. These amendments address two important initiatives in the National Employment Standards which have been designed to assist parents in balancing their work and family lives. In relation to items 1 to 3, we think the right to request flexible working hours is a good idea that is badly needed. This legislation is providing a right to request flexible working hours, but it cannot actually be enforced. A lot of issues have been raised about this during the committee inquiry and to the Greens separately. While there is an appreciation of the fact that the legislation includes the right to request, there is a lot of concern that a request cannot in fact be enforced. Therefore, we are very concerned that the right is not really a right. The way the legislation is drafted means that, effectively, employers can just say no without giving any reasons. We understand that the government’s provisions in the bill are based on similar provisions in the UK. However, there are important differences. There is the 26-week qualification period, there are more procedural requirements and, importantly, there is a review process.

The provisions in the National Employment Standards require an employee to be employed 52 weeks before the right becomes available, and in the UK it is 26 weeks or six months. We think that this is more appropriate. Although we have not moved an amendment to this effect as we wanted to concentrate on the more substantial problems with these provisions, we believe that six months is a much more appropriate time. We believe that 12 months is far too long a period before you can get this so-called ‘right’—and I am saying ‘so-called right’ because of my previous comments about it not being able to be enforced.

The Greens’ amendments pick out and deal with what we see as the key elements in the UK scheme that we believe should be a very minimum for the National Employment Standards—that is, the requirement for an employer to meet with their employee to discuss the request, and the ability for the employer’s decision to be reviewed by FWA on essential procedural grounds. We think this puts a lot more fairness into these arrangements and, to tell you the truth, I am a little bit confused as to why the government did not look at these and did not feel that it was important to provide these mechanisms in the first place, given that it is simply a process of procedural fairness, it seems to me. You would think that you would be able to ask to have the employer’s decision reviewed and also have the right to request to meet with your employer and just ask them about the issues.

Our amendments are taken from the UK legislation, and my understanding is that the UK legislation is working well and that the requirement to discuss the request is an important part of assisting to change the workplace culture around these issues. While there may be employers who will, as a matter of course, take this step anyway—and of course we expect fair employers to be doing that—we believe it can assist to make the provisions more effective if employees and employers sit down at least to hear each other out. Unfortunately, there will be some employers who do not take the time or the trouble to meet with employees to discuss this issue. We believe that there needs to be legislative backing for that.

There were a lot of submissions to the committee on this issue and there were calls in many submissions to merely delete clause 442, which prevents courts making an order about an employer’s decision to refuse such a request. Wishing to introduce these measures carefully, which is why we have not proposed that amendment at this stage, we suggest instead a limited review process by FWA. We think, in fact, that we are being fair. Our amendment is intended to allow FWA to review the process for making the decision and decide whether a decision is based on incorrect facts. Again, it follows the UK model, which we know works.

The other amendment we have moved to these provisions is to expand their eligibility. At present they are available to parents or other employees who have responsibility for the care of children under school age. The UK provisions extend to parents of children under 18 with a disability and to other carers. The position of carers in our community is well known and in fact has been discussed in this place on many occasions. The key problem for many carers is staying in touch with the workforce, and this is exactly the kind of measure that they need to assist in keeping them in the workforce while undertaking their care responsibilities. We particularly think that is a key amendment and we think it would be of great assistance to parents of children with disabilities. Again, it came up at the inquiry on many occasions. In fact Senator Abetz was following that issue extensively during the committee inquiry.

Foreseeing a little bit that the government may not be persuaded by the fairness of these arguments, we have also asked the government to review—and they have agreed—the operation of these provisions. As I said earlier, the reason we are moving these amendments is that we do not think they are going to operate effectively without the procedural amendments that we are moving—in other words, being able to meet with your employer to discuss the issue but also being able to ask Fair Work Australia to review the case. We think that they are not going to operate as effectively as the UK model does, or operate in a way that the government, presumably, is hoping that they will work. We believe that at least a review of the operation of the procedures is a good move.

We ask the Senate to support these amendments, believing that they will help to improve the work-life balance much more effectively than the government’s amendments do at present. They are a step in the right direction. They are not going as far as they should as compared with the UK model on which these are based. We urge the government and the opposition and our fellow crossbenchers to consider these issues very carefully.

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

Very briefly I indicate that the coalition does not support Green amendments (1) to (3), but we will be supporting amendment (4). I indicate that, in relation to the transition bill, the minister in the other place, I think quite arrogantly in her speech, has already said that the National Employment Standards include important entitlements, and one of them is for parents of young or disabled children. The Senate has not decided upon that as yet, but I fully support that inclusion.

It was very kind of Senator Siewert to recognise my following of that issue in relation to parents with disabled children. I simply say that as a senator I am indebted to one of my first employees, who had siblings who were disabled. Her family have educated me about the issues of the disability sector and for the last 15 years I have been seeking to work with and for them.

I saw an opportunity to include such a clause in this legislation. Having raised it during the committee hearings, I had hoped the government would introduce amendments—because I thought they were non-controversial—only to find that the government did not. But the Greens did do it. I indicate the support of the coalition for those. Briefly, we oppose amendments (1) to (3) because we do not believe it should be mandatory, but we do believe that there should be the sorts of requests that this legislation suggests, so we will be supporting amendment (4).

Progress reported.